#### J. H. ELLINGTON v. R. H. RICKS.

(Filed 24 March, 1920.)

1. Negligence — Invites—Premises—Owner—Reasonably Safe Condition.

One who invites another on his premises owes him the duty of keeping such of them as is covered by the invitation, including that close thereto, and upon which the invitee may be expected to casually go, in a reasonably safe condition, so that he may not be subject to injury.

*6872. Same — Explosives—Evidence—Questions for Jury — Nonsuit—Trials.

Tlie owner of the premises had contracted for the replacement of his old gasoline generator with a new one, which the seller was to install in a small brick house, where the old one had been used. There was evidence tending to show that the superintendent of the owner assumed to drain the old generator of gasoline and to move it from the brick house, and after he had placed it a short distance therefrom the owner called attention of the employee of the seller, doing the installation, to the old generator, and while he was examining it some gasoline left therein exploded to the injury of the seller’s employee, for which he brings his action against the owner to recover damages. Held, it was for the determination of the jury as to whether the owner observed the care required of him to keep his premises in a reasonably safe condition, and a motion for judgment as of nonsuit was properly overruled.

Appeal by defendant from Guión> Jat tbe October Term, 1919, of Wake.

This is an action to recover damages for personal injury inflicted while tbe plaintiff was engaged in tbe installation of an acetylene gas generator on tbe premises of tbe defendant.

Tbe defendant lived about five miles from Rocky Mount in Nasb Oounty. He bad in use an acetylene gas generator, wbicb furnished light for bis home. It bad been used about thirteen years and was located in a small brick bouse about 25 feet from tbe residence; tbe brick bouse was not used for any other purpose; it bad one door but' no windows; tbe gas generator was placed in front of tbe door, a few feet inside tbe bouse, J. B. Colt & Co., sold to defendant a new generator and was to have it installed, tbe defendant agreéing to pay tbe cost at a stipulated price per hour. There was in tbe State several men who made it a business of installing these generators, one of whom was tbe plaintiff, and tbe State Manager sent tbe installing contract of tbe machine sold Mr. Ricks to tbe plaintiff. Tbe plaintiff and bis helper, Mr. Maynard, proceeded, after tbe generator bad been received at Mr. Ricks’, to tbe defendant’s to install the generator. They reached there about 11 o’clock of tbe day. Mr. Bozeman, tbe farm superintendent and general manager of Mr. Ricks, met them, and they went to tbe gas bouse. Tbe new generator bad to be uncrated; tbe old machine to be disconnected and removed from tbe gas bouse.

Tbe plaintiff testified in bis own behalf as follows:

“An acetylene gas generator furnishes gas for lights for homes, stores or for cooking or ironing. Tbe gas is made by water coming in contact with carbide in tbe machine and is conducted from tbe machine by pressure of one and a half pounds to tbe square inch. Tbe gas drops in tbe carbide and that comes under a bell, and as it goes out it lowers and feeds more carbide. It works automatically by a bell.”

*688Tbat be was doing work for Mr. "Williams at Red Oak and tbis paper came to bim. He went to Mr. Ricks’ place, five miles from Rocky Mount. One of Mr. Ricks’ bands met bim at Dortcb’s store and carried bim over in a buggy to Mr. Ricks’ borne. When be got there Mr. Rozeman was not at borne, but bis wife sent for bim and be came up and said tbat tbey were ready for tbe installation to be made, and tbey went in and looked at tbe old machine tbat was then in use; tbat he told Mr. Bozeman tbat tbat make of machine was new to bim; tbat be did not know anything about it, and did not know where tbe carbide was in tbe chambers and asked Mr. Bozeman to remove tbe carbide from tbe old machine and be said be would do it; tbat witness went, and uncrated tbe new machine, which was fifty yards from tbe outhouse where tbe old machine was and when be got through tbat work of uncrating, Mr. Bozeman said be bad tbe carbide removed from tbe old machine and witness asked Mr. Maynard, bis helper, to disconnect tbe machine for bim.

Tbe old machine was in a little brick bouse almost opposite from where ibe witness was working. Tbe brick bouse was used only for these gas generator machines. It was about 20 or 25 feet from tbe main residence. He went to work about 12 o’clock and it took bim 15- or 20 minutes to uncrate bis machine. Mr. Bozeman said be bad tbe carbide removed and tbey bad to tilt tbe machine to get it out of tbe bouse. Mr. Bozeman bad some colored men to help bim get it out and directed tbe work of removing tbe old machine. Tbe only thing witness did was to put bis bands on tbe old machine when it was tilted over to be moved out of tbe bouse. Tbe machine was 7 or 7% feet tall. Mr. Bozeman bad tbe direction and control in tbe removal of tbe old machine. It took 15 or 20 minutes to remove tbe old machine out of tbe bouse after witness got back from uncrating bis machine and tbey set it 12 or 15 feet from tbe door. Witness and bis helper bad to build a brick foundation right up there in tbe same bouse to put tbe new machine on; but after tbey got tbe foundation built tbey set up their machine and while it was being filled with water Mr. Maynard called bim and said who is tbis machine made by and tbe witness said be saw some inscription on tbe side and tbat be walked up to tbe side of tbe old machine next to Mr. Maynard and saw tbe nameplate on it and be said it was made by some Chattanooga firm, and be said be saw some printing matter on one side, and be walked around to tbe opposite side of tbe machine, and Maynard walked toward tbe door and just as be got near tbe door and when witness got on tbe other side and saw tbe printed (matter) and stooped over to get bis face up even with it, tbe old machine exploded and threw bim 12 or 15 feet from tbe machine. It was sitting a little to tbe left of tbe bouse from which it was taken, and *689from 12 to 15 feet from tbe door. It was something like two and one-half feet in diameter, and from the base to the top was something like seven feet, I believe, and was made ont of galvanized iron. Mr. Boze-man gave him no warning about the old machine. He did not Know there was any danger from the old machine as he stood by it. The machine was in a dilapidated condition, and after Bozeman told witness that he had removed the carbide that he, witness, could not understand there would be any danger from what he understood about the carbide system, and that he knew that some of the water had been poured out and practically all of it. But on the way to Rocky Mount after the explosion, Mr. Bozeman told me and Maynard that- he had not removed all the carbide.

“It required 10 or 15 minutes for the water to run into the new tank installed by him. During that time he had nothing else to do and Mr. Maynard called him and asked by whom the old tank was made and he walked out to where Maynard was; that he had charge of the contract and Mr. Maynard was his helper; that he brushed off the name plate with his cap; that if the man who removed the carbide from the tank had taken all that there was in the main receptacle, there was no place where the carbide could have stuck in the wall to have, caused the explosion if it had been shaken up. The cause of the explosion was because the carbide was in the water.”

At the conclusion of the evidence there was a motion for judment of nonsuit, which was denied, and the defendant excepted.

There was a verdict and judment for the plaintiff and the defendant appealed. ..

R. N. Simms for plaintiff.

Battle & Winslow and Manning, Kiichin & Mebane for defendant.

Per Curiam.

There are several exceptions in the record, but all of them are covered by the exception to the refusal to nonsuit, and on this it is conceded, and properly so, that the plaintiff was an invitee on the premises of the defendant, and as such entitled to hold the defendant to the duty of keeping the premises covered by the invitation in a reasonably safe condition in order that he might not be subjected to injury.

It is also not contended by the defendant that there is no evidencé that the part of the premises, where the plaintiff was when he was injured, was unsafe, but the position insisted upon in the able and learned brief of the defendant and on oral argument is that the plaintiff when injured was on a part of the premises where he was not expected to go.

*690In other words, we are asked to bold as a matter of law that tbe plaintiff'-by stepping outside of tbe little room in wbieb tbe new tank was being installed, wbieb was 6 by 12 or 14 feet, while waiting for tbe tank to £11 with water and walking 12 or 15 feet to look at tbe old tank, from which Bozeman, tbe superintendent and manager of tbe defendant, bad told him tbe carbide, tbe cause of tbe explosion, bad been removed, departed from tbe terms of bis invitation and must be treated as a trespasser or licensee at tbe time of bis injury, and as such tbe defendant owed him no duty except to refrain from wilful injury.

“Tbe authorities are entirely agreed upon tbe proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have bis premises in a reasonably safe condition and to give warning of latent or concealed perils.” 20 R. C. L., 55, and that “Tbe owner or occupant of premises is liable for injuries sustained by persons who have entered lawfully thereon only when tbe injury results from tbe use and occupation of that part of tbe premises which has been designed, adapted, and prepared for tbe accommodation of such persons.” 20 R. C. L., 67.

If an invitee goes “to out-of-way places on tbe premises, wholly disconnected from and in no way pertaining to tbe business in band” and is injured, there is no liability. Glaser v. Rothschild, 221 Mo., 180, but a slight departure by him “in tbe ordinary aberrations or casualties of travel” do not change tbe rule or ground of liability, and tbe protection of tbe law is extended to him “while lawfully upon that portion of tbe premises reasonably embraced within tbe object of bis visit.” Monroe v. R. R., 151 N. C., 376; Pauckner v. Waken, 14 L. R. A. (N. S.), 1122.

As said by Winslow, C. J., in Charron v. Fuel Company, 149 Wis., 240 speaking of a similar question as applied to an employee. “Tbe law aims to be reasonable. It recognizes that it has to deal with imperfect human beings and not with faultless and unerring automatons, and that its rules should be shaped accordingly. It must recognize tbe fact that men employed in bard physical labor require and habitually take some brief respite at times during tbe work as opportunity offers; and it must also recognize tbe fact that such a respite, if only of tbe ordinary and usual nature, cannot rightly be called a leaving of tbe employment. In tbe present case tbe plaintiff bad just carried a plank, doubtless of considerable weight, to tbe top of tbe structure. In returning be stopped for a minute or two at a convenient stopping place stepped perhaps eight feet from bis line of travel, and gazed at tbe operations upon and about tbe vessel and tbe harbor below, which were doubtless interesting and attractive. We do not feel that we are obliged to bold or ought to bold as matter of law that this brief and very natural break in tbe plaintiff’s routine labor divested him of bis character as an employee.”

*691Tbe tank wbicb caused tbe injury was close to tbe course of travel from tbe little bouse where tbe new tank was being installed to tbe dwelling; it was witbin 12 or 15 feet of tbe little bouse and it was on tbat part of tbe premises being used in > tbe installation of tbe new tank, because it was necessary to place it there in tbe proper performance of tbe duty, and this was done under tbe direction of tbe manager and superintendent of tbe defendant.

Tbe plaintiff and Bozeman were in fact using in their work tbe part of tbe premises where tbe plaintiff was standing at tbe time of bis injury. .

We do not think under these conditions it can .be said as a legal conclusion tbat there was such a departure by tbe plaintiff from tbe scope of bis invitation as to bar a recovery.

No error.